Katrina Clarke | May 15, 2014 | National Post
A Florida sex offender who had sex with a 16-year-old boy and fled to Saskatchewan, where she claimed asylum, has been granted refugee status in Canada.
Denise Harvey, 47, was convicted in 2008 of five counts of unlawful sexual activity with a minor, a boy who was on her son’s baseball team. She is wanted in the U.S., where she is facing a 30-year prison sentence.
“The [Immigration and Refugee Board] granted Ms. Harvey protected person status. This status allows Ms. Harvey to apply for permanent residency,” wrote a spokesperson for Citizenship and Immigration Canada in an email to the National Post Thursday.
Such rulings involving Americans are rare: The IRB told the National Post Thursday that only three such claims were accepted in 2013.
Ms. Harvey, a mortgage broker, and the 16-year-old met at her son’s baseball practices. The two had sex five times at the boy’s father’s house and after hours in her office.
In November, 2009, Ms. Harvey, her husband and son, fled their Vero Beach, Fla. home and moved to Pike Lake, Sask.
One and a half years later, in April 2011, she was arrested by RCMP.
Ms. Harvey then sought refugee protection, claiming her 30-year sentence was “cruel and unusual punishment.” She insisted she did not commit the crimes she’d been convicted of.
The Immigration and Refugee Board initially granted asylum to Ms. Harvey. In federal court documents, the board notes that there was no evidence that the sex was not consensual. The physical relationship was only illegal because of the age difference, the documents state.
The IRB decided Ms. Harvey was facing cruel and unusual punishment by Canada’s standards, which was also in disregard, it said, of ‘‘accepted international standards.’’
In Florida, it is illegal for a person over the age of 24 to have sex with a person 16 or younger. In Canada, the age of consent is 16. If the accused is in a position of trust or authority, the age of consent is 18.
Canada’s Minister of Citizenship and Immigration then appealed to the Federal Court of Canada to overturn the decision. In a decision released in July, 2013, the appeal was granted and Ms. Harvey lost her refugee status.
The judge in the appeal case ruled the IRB had not provided adequate reasoning explaining why Ms. Harvey’s sentence contravened international standards. “We do not know which of Ms. Harvey’s arguments on the question of ‘accepted international standards’ were or were not accepted and why that was,” wrote Justice Anne Mactavish.
This federal court decision cleared the way for a new IRB hearing.
Alexis Pavlich, spokesperson for Chris Alexander, Minister of Citizenship and Immigration Canada, said the government’s position in the case is clear, noting it had appealed the ruling.
“Our Conservative government is committed to keeping Canada’s streets and communities safe for all Canadians, particularly for those who are most vulnerable – children,” she said.
Our Conservative government is committed to keeping Canada’s streets and communities safe for all Canadians, particularly for those who are most vulnerable – children
Nikki Robinson, a Florida assistant state attorney who was a prosecutor on Ms. Harvey’s original case, said Ms. Harvey entered Canada illegally as a convicted sex offender.
“It is incomprehensible to me that Canada would grant her any type of immigration relief under these circumstances,” she said in an email to the National Post.
Barry Golden, senior investigator with the U.S. Marshal’s Office in Miami, Fla., said Ms. Harvey’s case will remain open in the U.S.
“If she does come back to the States there will be an active arrest warrant for her,” he said.
“This type of crime, any felony where you’re sentenced to 30 years, that’s a severe crime,” he said.
He said he could not comment on whether or not the U.S. would continue to seek to extradite Ms. Harvey.
“It’s a case that’s going to remain open, not only with our marshal’s service in Fort Pierce but also our international investigations branch,” he said. “We have investigators that are liaisons to Canada and they may periodically keep tabs on the investigation and find out what’s going on.
“We don’t close a case just because things aren’t ruled in our favour,” he said.
A spokesperson for the IRB said they cannot discuss specific refugee claims or claims to be a person in need of protection due to privacy restrictions.
Ms. Harvey’s lawyer said he would not comment on her case.
If Ms. Harvey does apply for permanent resident states and is approved, she will receive most social benefits Canadians receive, including healthcare coverage. She could also apply for Canadian citizenship.
National Post, with files from Adrian Humphreys